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Lyle Denniston looks at a theory that individual states would have to accept same-sex marriage and polygamy if courts strike down the Defense of Marriage Act.

The statement at issue:

“In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the First Circuit [Court] attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”

– Dale Schowengerdt, a lawyer on the “marriage litigation team” of the Alliance Defend Fund, in a comment to The New York Times on May 31, reacting to the First Circuit’s decision striking down the federal Defense of Marriage Act’s ban on any federal marriage benefits for same-sex couples who are legally married under state law.

We checked the Constitution, and…

For as long as the issue of same-sex marriage has been debated in legal and political circles, a seldom-interpreted provision of the Constitution has been a part of the debate, sometimes prominently, sometimes lurking in the background. It is in Article IV, the so-called Full Faith and Credit clause. And that presumably is what attorney Schowengerdt had in mind in voicing concern about the potential spread of gay marriage – and, he added, plural marriage (polygamy).

He may have been premature, because the court fights so far have focused on whether there is any right, wide or narrow in scope, for gays and lesbians to get married. The First Circuit Court’s ruling on Thursday did not establish any such right, but it did declare that, if a state has chosen to allow such marriages, Congress will have to come forward with stronger reasons than it has so far for denying those who marry under such a state law the federal employment, insurance and tax benefits that are available to opposite-sex couples.

The reasons Congress gave for enacting such a ban in 1996 in the federal Defense of Marriage Act, the Boston-based Circuit Court said, were not sufficient to justify a deep intrusion into the states’ traditional control over marriage. As a result, it struck down DOMA’s benefits ban, in Section 3.

About Constitution Check

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

But the decision emphasized that the court was not dealing with a separate part of DOMA. That is Section 2, in which Congress – invoking its powers under the Full Faith and Credit clause – declared that no state or territory could be required to honor a same-sex marriage performed in another state. Section 2’s validity was not challenged in that case, the court noted.

That, of course, is the next-phase dispute, and it definitely will arise if this decision, or any other decision providing legal protection for gay marriage, is ultimately upheld by the Supreme Court. (Most courts that issue such rulings are likely to put them on hold until the Supreme Court can act, as the First Circuit did Thursday.)

The dispute probably will get started when a legally married same-sex couple moves to another state, one that forbids such marriages, and wants to remain eligible for federal benefits won in the First Circuit decision. Most of those benefits, though, are provided directly by the federal government, so the state of residence of gay spouses would not affect those provisions.

There are, however, some other federal benefits that are keyed to state-provided benefits, and those, too, are forbidden by DOMA. With the Circuit Court’s new ruling, those, too, presumably would have to be provided to a legally married same-sex couple. Would those travel with them to a no-gay-marriage state? That will be the constitutional issue under the Full Faith and Credit clause, and it probably would require the courts to decide whether Section 2 of DOMA is, itself, unconstitutional as too deep an intrusion into states’ prerogatives or as discrimination based on hostility to homosexuals.

As for attorney Schowengerdt’s concern about polygamy spreading if one state should uphold such plural marriages, that touches on a form of union to which – so far – no state and no court decision has given its blessing. It is true that, in a federal court in Utah, there is a lawsuit pending by the Kody Brown family – the polygamist family that stars in the reality TV program, “Sister Wives” — and that lawsuit is moving ahead despite state officials’ attempts to get it dismissed.

Once again, though, that is a first-round test of a right to enter a particular kind of marriage, and the potential future spread of that legal concept to other states would, also, depend upon the outcome of the Full Faith and Credit issue.

The Supreme Court has not dealt with polygamy in 134 years, and that 1878 decision (Reynolds v. U.S.), upheld government power to punish plural marriages as a crime. The constitutional issues might be different now, and that, it appears, is what worries attorney Schowengerdt.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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